RFP Addendum 1 Q and A - Current Contract.pdf

PORTABLE RESTROOMS

CONTRACT

PORTABLE RESTROOMS CONTRACT REVISED 04.16.2021

This portable restrooms Contract (this “Contract”) is effective as of May 1, 2021 (the “Effective Date”).

Between:

Bend Park and Recreation District (the “District”) 799 SW Columbia Street Bend, OR 97702 and

BS Investing Inc. dba Little John’s Portable Toilets (“Contractor”) 114 NE Penn Ave, Bend, OR 97701

For the following project (the “Project”):

Portable restrooms and services as further detailed below.

The District and Contractor (each a “Party” and, collectively, the “Parties”) agree as follows:

1. SCOPE OF WORK. Contractor shall provide all software, hardware, equipment, facilities, labor, material, and other services necessary for proper execution and completion of the work described below (the “Work”):

1.1. Contractor shall provide the following minimum services (“Services”):

1.1.1. Portable restrooms provided at the Contractors sole expense.

1.1.2. A schedule for performance of cleaning and maintainence services as mutually agreed between the District and Contractor, which may change from time to time based on usage and need.

1.1.3. Provide all labor, chemicals, supplies, materials, equipment, and tools necessary to maintain commercially reasonable sanitary conditions and functionality of the portable restrooms at all times.

1.1.4. Maintining sufficient supply of hand santizer, and toilet paper, within each portable toilet for usage between servicing.

1.1.5. Delivery and pickup of portable restrooms at locations within the District, as directed by the

District.

1.1.6. Customer service staff available Monday through Friday between 8:00 AM and 5:00 PM Pacific

Time, exluding federal holidays.

1.1.7. Provide a minimum response time of two (2) hours for cleaning, maintenance, or restroom replacement when directed by the District.

1.1.8. Provide portable restrooms and services for special events as needed, including cleaning service, pickup, and delivery. Contractor is responsible for tracking portable restrooms delivered to special events, and the associated delivery, pickup, and service schedule.

1.1.9. Provide Safety Data Sheets (SDS) for products as required by law, rule, policy, or ordinance.

1.1.10. Remove trash from within portable restrooms and dispose of offsite.

1.2. Contractor shall provide portable restrooms that meet or exceed the following minimum specifications:

1.2.1. Be gray, green, or other neutral color which blends in with surroundings.

1.2.2. Be less than five (5) years old, in good condition and appearance.

1.2.3. Be equipped with a functioning lock system, occupied/vacant indicator, toilet paper dispenser, hand sanitizer dispenser, toilet seat, and toilet seat cover.

1.2.4. Clearly display record identifying personnel performing Service, and date of Service.

1.3. Contractor and District shall work together to secure portable restrooms from tip overs.

1.4. Contractor shall be soley responsible for all replacement, cleanup, and, or repair as needed in the event of vandalism, damage, theft, tip-over, or other calamity, to any of the products or services provided under this Contract.

1.4.1. In the event of a total loss to a portable restroom unit installed on District property under this Contract, District and Contractor agree to evenly share the commercially reasonable cost of replacing the portable restroom unit.

1.5. In the event Contractor receives a request from the public to service a portable restroom, Contractor shall obtain prior-approval from District to perform an extra Service.

2. CONTRACT TERM. This Contract shall be effective upon Effective Date and the term shall continue through

March 31, 2022. The District may elect to renew this Contract for four (4) additional terms of one (1) year each. The District may exercise its renewal right by written notice to Contractor not less than 60 days prior to the last day of the then-expiring term. (Notwithstanding the foregoing, the District’s deadline to exercise its renewal right shall be extended one day for each day that Contractor fails to timely deliver renewal term pricing, as required by Section 3.2.) Timely delivery of a renewal notice shall make this Contract binding for one (1) additional one-year term without further action of the Parties. The renewal term shall commence on the day immediately following the expiration of the immediately preceding term. The terms and conditions for the renewal term shall be identical with the immediately preceding term except that the District shall no longer have any renewal right that has previously been exercised.

3. CONTRACT PRICE. The District will pay Contractor the following amounts:

3.1. Original Term Prices as detailed in attached Exhibit B.

3.2. Renewal Term Pricing. Not less than 120 days prior to the last day of the original term, Contractor shall provide the District with unit pricing for Work to be performed during the renewal term(s). Contractor’s renewal pricing shall apply to each one (1) year renewal term (if exercised).

4. PAYMENT TERMS. The District shall pay Contractor within 30 days of receipt of a properly itemized invoice following completion of the Work performed during the Contract term.

5. PREFERED PROVIDER. Contractor shall be District’s preferred provider for portable restrooms and related services. District may, at District’s sole discretion, obtain the services of another provider of portable restrooms and related services at anytime during Contract term if District determines in District’s sole discretion that it would be in District’s best interest to do so.

6. AS NEEDED. Contractor shall perform the Work on an as needed basis, as requested by the District. District is not required to make any purchases under this Contract.

7. CONTRACT DOCUMENTS. As used in this Contract, the “Contract Documents” consist of the following documents (listed in order of precedence for the purpose of determining conflicting provisions in the

Contract Documents):

7.1. This Contract;

7.2. The Terms and Conditions attached as Exhibit A;

7.3. Price Schedule attached as Exhibit B;

7.4. The District’s Request for Proposals issued February 22, 2021; and

7.5. Contractor’s Proposal dated February 25, 2021 submitted in response to the District’s Request for

Proposals.

8. MISCELLANEOUS.

8.1. ENTIRE AGREEMENT; SIGNATURES. The Contract Documents contain the entire understanding of the

Parties regarding the subject matter of this Contract and supersede all prior and contemporaneous negotiations and agreements between the Parties, whether written or oral, with respect to the subject matter of this Contract. This Contract may be signed in counterparts. An electronically transmitted signature page will be considered an original signature page. At the request of a Party, the other Party will confirm an electronically transmitted signature page by delivering an original signature page to the requesting Party.

8.2. SEVERABILITY. If any provision of this Contract is declared by a court of competent jurisdiction to be illegal or in conflict with any law, the validity of the remaining terms and provisions shall be construed and enforced as if the Contract did not contain the particular provision held to be invalid.

8.3. WAIVER. Failure of either Party to enforce any provision of this Contract shall not constitute waiver of the right to require such performance in the future nor of the right to enforce any other provision of this

Contract. Payment by the District shall not constitute the District’s waiver of any rights under this

Contract.

8.4. TIME. Time is of the essence in the performance of all obligations under this Contract. Contractor shall at all times carry on the Work diligently, without delay and punctually fulfill all requirements of the

Work.

8.5. AMENDMENTS. This Contract may only be amended by written instrument, signed by both Parties.

8.6. ASSIGNMENT. Except for portions of the Work performed by Contractor’s employees or subcontractors approved by the District, this Contract is not assignable or transferable by Contractor without the

District’s prior written consent, which may be withheld in the District’s sole discretion, and any purported assignment or transfer without the District’s consent shall be void.

8.7. FURTHER ASSURANCES; SURVIVAL. The Parties will sign such other documents and take such other actions as are reasonably necessary to further effect and evidence this Contract. The termination of this

Contract, regardless of how it occurs, will not relieve a Party of obligations that have accrued before the termination. All Contractor representations, warranties, covenants, and obligations contained in this

Contract (including, without limitation, Contractor’s indemnity obligations) will survive the termination of this Contract.

8.8. GOVERNING LAW; VENUE. This Contract shall be interpreted and administered under the laws of the

State of Oregon without regard to conflict of laws principles. Any claim or dispute that arises from or relates to this Contract shall be brought and conducted solely and exclusively within the Circuit Court of

Deschutes County for the State of Oregon; provided, however, if a Claim must be brought in a federal forum, then it shall be brought and conducted solely and exclusively within the United States District

Court for the District of Oregon.

8.9. ATTORNEYS’ FEES. If any arbitration or litigation is instituted to interpret, enforce, or rescind this

Contract, including, without limitation, any proceeding brought under the United States Bankruptcy

Code, the prevailing Party on a claim will be entitled to recover with respect to the claim, in addition to any other relief awarded, the prevailing Party’s reasonable attorneys’ fees and other fees, costs, and expenses of every kind, including, without limitation, the costs and disbursements specified in ORCP 68

A(2), incurred in connection with the arbitration, the litigation, any appeal or petition for review, the collection of any award, or the enforcement of any order, as determined by the arbitrator or court.

8.10. INTERPRETATION. As used in this Contract, the term “person” means any natural person, corporation, limited liability company, partnership, joint venture, firm, association, trust, unincorporated organization, governmental agency, political subdivision, or any other entity, as context may require. All pronouns, and any variations, will be deemed to refer to the masculine, feminine, or neutral, as the identity of the person may require. The singular includes the plural and the plural includes the singular.

The word “or” is not exclusive. The words “include,” “includes,” and “including” are not limiting. The

EXHIBIT A

TERMS AND CONDITIONS

1. COMPLIANCE WITH APPLICABLE LAW. Throughout the term of this Contract, Contractor shall comply with all applicable laws relating to performance of the Work including.

2. INDEMNIFICATION AND HOLD HARMLESS. Contractor agrees to hold harmless, indemnify, and defend the

District, and its officers, directors, employees, agents, volunteers, and contractors, from and against all claims, suits, actions, losses, damages, liabilities, costs, and expenses of any nature (including, without limitation, reasonable attorneys’ fees and settlement costs) resulting from, arising out of, or related to:

2.1. Any misrepresentation, breach or alleged breach of any representation, warranty, agreement, or obligation under this Contract by Contractor or its affiliates or subcontractors;

2.2. Any actual or alleged performance or nonperformance of the Work including;

2.3. Any claim or liability arising from any contract between Contractor and any third party, whether or not made to effectuate the purposes of this Contract, and regardless of whether Contractor enters into such contracts as the District’s agent or as principal;

2.4. Any actual or alleged violation of any applicable law by Contractor;

2.5. Taxes, together with interest and penalties, that are Contractor’s responsibility under the Contract;

2.6. Infringement or alleged infringement of any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other personal or proprietary right of a third party in connection with the Work;

and

2.7. Any other claim related to the Work and due to any act, negligence, willful misconduct, or omission by

Contractor or its affiliates or subcontractors or their respective officers, directors, employees, suppliers, subcontractors, agents, successors, or affiliates.

3. INDEPENDENT CONTRACTOR. Contractor is an independent contractor, and not an employee, of the

District. Contractor is free from direction and control over the means and manner of performing the Work, subject only to the right of the District to specify the desired results, and the District reserves the right to evaluate the quality of the Work. The District will not withhold any taxes from any payments made to

Contractor, and Contractor will be responsible for paying all taxes arising out of or resulting from

Contractor’s performance of the Work, including, without limitation, income, social security, workers’ compensation, and employment insurance taxes. Contractor is solely responsible for obtaining all licenses, approvals, and certificates necessary or appropriate to perform the Work. This Contract does not create a joint venture, partnership, or agency relationship between the District and Contractor. Contractor does not have the authority to bind the District to any contract or other agreement or represent to any person that

Contractor is an agent of the District. Contractor has the authority to hire other persons to assist Contractor in performing the Work (and has the authority to fire such persons). The District shall neither have nor exercise any control or direction over the means or manner by which Contractor or its employees under its control shall perform their work and other functions.

4. FORCE MAJEURE. Neither Party shall be responsible for any nonperformance or delay in the performance of any obligation under this Contract caused by fire, riot, acts of God, terrorism, war, government-imposed restrictions, or any other cause which is beyond the Party’s reasonable control (each a “Force Majeure

Event”). Such Party shall, however, promptly notify the other Party of any Force Majeure Event and shall make all reasonable efforts to perform such obligation as soon as reasonably possible after the end of such cause for delay or nonperformance. No Force Majeure Event shall commence or be deemed to have occurred unless, within 10 days of the event constituting the Force Majeure Event, the Party claiming such delay has provided written notice to the other specifying the circumstances that the claiming Party contends constitutes a Force Majeure Event. Notwithstanding the foregoing, the District may terminate this Contract upon written notice to Contractor after reasonably determining that the Force Majeure will likely prevent successful performance of this Contract.

5. TERMINATION.

5.1. MUTUAL CONSENT. This Contract may be terminated at any time by mutual written agreement of the

Parties.

5.2. TERMINATION FOR CONVENIENCE. The District may, at the District’s sole discretion, terminate this

Contract, in whole or in part, upon 30 days’ written notice to Contractor. In the event of such termination, the District shall pay Contractor the fees and expenses reasonably incurred prior to such termination.

5.3. TERMINATION BY DISTRICT. The District may, at the District’s sole discretion, terminate this Contract, immediately upon written notice to Contractor, or on such later date as the District may establish in its notice, upon the occurrence of any of the following events:

5.3.1. The District fails to receive funding, appropriations, limitations, allotments, or other expenditure authority at levels sufficient to pay for the Work.

5.3.2. Federal, state, or local laws, rules, regulations, ordinances, or guidelines are modified or interpreted in a way that either the purchase of the Work by the District under this Contract, or the District’s payment for the Work from the planned funding source, is prohibited.

5.3.3. Contractor is in default of this Contract beyond all applicable notice and cure periods.

5.4. TERMINATION BY CONTRACTOR. Contractor may terminate this Contract if the District fails to make any payment to Contractor within 10 days of written notice from Contractor that such payment is past due.

6. EVENTS OF DEFAULT. The occurrence of any of the following events shall constitute a default by Contractor under this Contract:

6.1. Contractor institutes, or has instituted against it, insolvency, receivership, or bankruptcy proceedings, makes an assignment for the benefit of creditors, or ceases doing business on a regular basis;

6.2. Contractor no longer holds any license or certificate that is required for Contractor to perform its obligations under this Contract and Contractor has not obtained a replacement license or certificate within 14 days after receipt of notice of the default from the District; or

6.3. Contractor fails to perform any covenant, warranty, or other obligation under this Contract, including failure to perform any obligation within the time specified or any extension of that time, and

Contractor fails to cure such nonperformance within 14 days after receipt of written notice from the

District; provided, however, if the default is of such a nature that it cannot be completely remedied within the 14-day cure period, Contractor shall not be in default if Contractor begins correction of the default within such 14-day period and diligently proceeds in good faith to effect the remedy as soon as practicable.

7. NOTICES. All notices or other communications required or permitted by this Contract must be in writing, delivered to the Parties at the addresses set forth above, or such other address as a Party may designate by written notice to the other Party. Notices are considered delivered upon actual receipt if delivered personally, by fax (with electronic confirmation of delivery), by email (with hard copy delivered within two business days), or by a nationally recognized overnight delivery service; or at the end of the third business day after the date deposited in the United States mail, postage pre-paid, certified, return receipt requested.

8. INSURANCE.

8.1. INSURANCE COVERAGES. Contractor shall obtain and maintain throughout the term of this Contract, the following insurance coverages:

8.1.1. GENERAL LIABILITY. Commercial general liability insurance (occurrence form), including coverage for bodily injury, property damage, independent contractors, contractual liability

(covering Contractor’s indemnification obligations under this Contract), personal injury, products and completed operations, with limits of not less than $2,000,000 per occurrence and

$4,000,000 in the aggregate. Contractor’s liability insurance shall be primary and will not seek contribution from any insurance or self-insurance maintained by the District.

8.1.2. AUTO LIABILITY. Applicable to any automobile assigned to or used in the performance of the

Work, whether owned, hired or non-owned, with a limit of liability of not less than $1,000,000 combined single limit per accident.

8.1.3. WORKERS’ COMPENSATION INSURANCE. Statutory limits. Contractor shall comply with ORS

656.017, which requires subject employers to provide Oregon workers’ compensation coverage for all their subject workers including employers’ liability coverage with limits not less than

$500,000. No workers’ compensation insurance has been or will be obtained by the District for

Contractor or Contractor’s employees and subcontractors.

8.1.4. ADDITIONAL INSURED. Contractor shall name the District, its officers, employees, and agents as additional insureds on all liability policies other than errors and omissions and workers’ compensation policies.

8.1.5. NOTICE. There shall be no cancellation, material change, potential exhaustion of aggregate limits, or non-renewal of insurance coverage(s) without 30-days written notice from Contractor, or Contractor’s insurer(s), to District. Any failure to comply with the reporting provisions of this clause shall constitute a material breach of this Contract and shall be grounds for immediate termination of this Contract by District.

8.2. Contractor shall, within 5 days after execution of this Contract and prior to commencement of any

Work, furnish the District with original certificates of insurance, including the additional insured and all required amendatory endorsements (or copies of the applicable policy language effecting coverage required by this clause), and a copy of the declarations and endorsement page of the commercial general liability policy, listing all policy endorsements. Contractor shall deliver new certificates, endorsements, and declarations and endorsement pages to the District within 5 days after replacement or renewal of any required insurance policy. If Contractor does not provide evidence of required insurance, the District shall have the immediate right at the District’s sole discretion to procure the required insurance on behalf of Contractor and to charge and deduct the cost of such insurance from payments due to Contractor. The District reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by this Section, at any time. Failure to obtain the required documents prior to the Work beginning shall not waive the

Contractor’s obligation to provide them.

8.3. Contractor understands that the stated limits of liability are the minimum acceptable by the District, Contractor further understands it is the responsibility of Contractor to determine the appropriate limits of liability in excess of the District’s minimum acceptable limits to meet Contractor’s risk.

8.4. If Contractor maintains broader coverage and/or higher limits than the minimums shown above, the

District requires and shall be entitled to the broader coverage and/or higher limits maintained by the

Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the District.

9. NON-DISCRIMINATION. Contractor shall comply with all applicable requirements of federal and state civil rights law and rehabilitation statutes and shall not discriminate based on race; color; gender; age; religion;

ancestry, national origin; U.S. military veteran status; marital status; sexual orientation; disability; medical condition; source of income; or political affiliation in programs, activities, services, benefits, or employment in connection with this Contract.

10. COMPLIANCE WITH LAWS. Contractor shall comply with all laws, codes, regulations, and applicable requirements imposed by governmental authorities having jurisdiction over the Work.

11. WARRANTY. Contractor will perform the Work to the best of Contractor’s ability, diligently, and without delay, in good faith, in a professional manner in accordance with the highest professional standards of the industry, free from any material errors, omissions, or defects, and in strict compliance with the terms and conditions of this Contract.

- END OF TERMS AND CONDITIONS -

UNIT TYPE DAILY RATE WEEKLY RATE MONTHLY RATE ANNUAL RATE SPECIAL EVENT DAILY RATE

Standard 2.47$ 17.26$ 75.00$ 900.00$ 75.00$

Accessible 3.78$ 26.47$ 115.00$ 1,380.00$ 110.00$

Handwash station - single basin 2.63$ 18.41$ 80.00$ 960.00$ 80.00$

Handwash station - double basin 4.93$ 34.51$ 150.00$ 1,800.00$ 150.00$

Standard changing station 2.30$ 16.11$ 70.00$ 840.00$ 70.00$

Accessible changing station 6.58$ 46.03$ 200.00$ 2,400.00$ 200.00$

Extra Service (per occurrence) 20.00$ N/A N/A N/A 20.00$

EXHIBIT B - PRICE SCHEDULE

PORTABLE RESTROOMS AND SERVICES

EXHIBIT B - PRICE SCHEDULE

SECOND AMENDMENT

This second amendment (“Second Amendment”) is between:

Bend Park and Recreation District (the “District”), an Oregon special district

799 SW Columbia Street

Bend, OR 97702 and

BS Investing Inc. dba Little John’s Portable Toilets (“Contractor”)

114 NE Penn Ave.

Bend, OR 97701

The District and Contractor entered into a Portable Restrooms Contract effective as of May 1, 2021 for the provision of portable restrooms and services (the “Contract”).

The District and Contractor entered into the First Amendment effective as of April 1, 2022 to extend the term of the Contract (“First Amendment”).

The District and Contractor desire to further extend the term of the Contract in accordance with the renewal options contained in the Contract.

For the mutual exchange of promises contained in this Second Amendment and the Contract, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the

District and Contractor agree as follows:

1 Amendment to Section 1.1

Section 1.1 of the Contract is hereby amended by adding the following new section 1.6 after section 1.5 as follows:

1.6. When reasonably necessary, Contractor may paint over, or otherwise coverup, visual defects in portable restroom units, including, without limitation, graffiti.

2 Amendment to Section 1.1.1

Section 1.1.1 of the Contract is hereby amended as follows:

1.1.1. Portable restrooms provided at the Contractors sole expense.

3 Amendment to Section 1.1.7

Section 1.1.7 of the Contract is hereby amended by replacing section 1.1.7 in its entirety with the following new section 1.1.7:

1.1.7. Provide a minimum response time of: (1) two-hours for cleaning when necessary to maintain a healthy and safe portable restroom, or to remove (or coverup in accordance

SECOND AMENDMENT

TEMPLATE 03.07.2023

with section 1.6) offensive graffiti, when directed by the District; and (2) 24-hours for maintenance, repairs, or portable restroom replacement.

4 Amendment to Section 1.2.2

Section 1.2.2 of the Contract is hereby amended by replacing section 1.2.2 in its entirety with the following new section 1.2.2:

1.2.2 Be in reasonable condition and appearance (“reasonable condition and appearance” shall be determined by the District in its sole discretion).

5 Amendment to Section 1.4

Section 1.4 of the Contract is hereby amended by replacing section 1.4 in its entirety with the following new section 1.4:

1.4. Contractor shall be solely responsible for all replacement, cleanup, and repair to, or resulting from, the products and services provided under this Contract, except upon the occurrence of any of the following events:

1.4.1. a portable restroom is a total loss (the parties shall mutually agree upon the determination of a “total loss” upon each occurrence), in which event the parties agree to evenly share the commercially reasonable replacement cost of the portable restroom unit (Contractor shall provide documentation acceptable to the District, including, without limitation, photographs, invoice(s), and other records requested by the District which substantiate the event and costs);

1.4.2. a portable restroom tips-over, and the location of the portable restroom prevented it from being bolted to a concrete pad or otherwise secured from tipping-over, in which event the District will pay Contractor for one Extra Service charge per occurrence;

1.4.3. minor damages or vandalism are caused to a portable restroom unit which can be corrected by Contractor within approximately one-hour, and the District has submitted a prior request for Extra Service (such requests are separate and distinct from the schedule for performance set forth under section 1.1.2), in which event the District will pay Contractor for one Extra Service charge per occurrence; or

1.4.4. severe damages or vandalism are caused to a portable restroom unit which cannot be corrected by Contractor “in-the-field” and which requires substantially more than one-hour to correct, in which event the District will pay Contractor one Extended

Service charge per occurrence.

1.4.4.1. Contractor shall provide documentation acceptable to the District, including, without limitation, photographs and other records requested by the

District which substantiate each occurrence that results in an Extended Service charge.

UNIT TYPE DAILY RATE WEEKLY RATE MONTHLY RATE ANNUAL RATE SPECIAL EVENT DAILY RATE

Standard 3.29$ 23.26$ 100.00$ 1,200.00$ 100.00$

Accessible 4.61$ 32.56$ 140.00$ 1,680.00$ 140.00$

Handwash station - double basin 4.93$ 34.88$ 150.00$ 1,800.00$ 150.00$

Standard changing station 3.29$ 23.26$ 100.00$ 1,200.00$ 100.00$

Accessible changing station 7.89$ 55.81$ 240.00$ 2,880.00$ 240.00$

Large changing station (converted) 7.07$ 50.00$ 215.00$ 2,580.00$ 215.00$

Lock 0.16$ 1.16$ 5.00$ 60.00$ 5.00$

Extra Service (per occurrence) 45.00$ N/A N/A N/A 45.00$

Extended Service (per occurrence) 80.00$ N/A N/A N/A 80.00$

EXHIBIT B - PRICE SCHEDULE AMENDED (04/10/2023)

PORTABLE RESTROOMS AND SERVICES

EXHIBIT B - PRICE SCHEDULE AMENDED